I’m not talking about the sore knees, or the need for trifocals, or the ability to remember names.
This column is about the challenges presented by vulnerable adults, as illustrated by a recent court decision, Estate of Thelma Theresia Campbell v Arnold James Campbell and Ivan Andrew Campbell, issued December 14, 2022. The full decision can be read online at courts.gov.bc.ca.
Mrs. Campbell died in 2017, predeceased by her husband in 2014. The Campbells had three children – Karen, who lived in the same city as her parents, Ivan who lived in White Rock, and Arnold who lived in Ottawa.
Until his death in 2014, the Campbells were self sufficient. Since Karen’s return to their city in 1981, they interacted often with Karen and her husband and family, although the relationship was not one of dependence. The Campbells had assembled an asset mix including real estate, rental properties, and savings. Mrs. Campbell took an active role in managing the assets.
In 2010, the Campbells made wills and gave powers of attorney to each other. The alternate executor and alternate attorney in each case was Karen. The Campbells’ wills explained some prior property transfers by them to children and others into joint tenancy, and confirmed that these properties were intended to be gifted to the co-owners on the death of both Campbells. The remainder of the Campbells’ estate was to go equally among the three children.
After Mr. Campbell's death, Mrs. Campbell's health and cognition declined and the assistance needed and provided by Karen and her husband increased. Mrs. Campbell also started to exhibit unusual behaviours, including approaching men in a shopping mall food court to take on a role as her companion and chauffeur, advertising for a companion/chauffeur, and removing relatively large cash amounts from her bank accounts, some of which she gave to a companion/chauffeur to hold for her.
As Mrs. Campbell's cognition continued to decrease, the care demands on Karen and her husband continued to increase and presented more challenge. Karen talked with her brothers about her concerns over her mother; the brothers provided advice but were not able to provide help or relief for the care required. Karen called on an aunt, a cousin, and a personal care assistant, all coordinated by Karen to try to keep up with her mother's care needs.
Because of her concerns about her mother's health, Karen asked for a psychiatric assessment of Mrs. Campbell. Two assessments were done, one in February 2016 and the second in September 2016. Both Karen and Ivan were at the first assessment. At that time, Mrs. Campbell had become very deaf and had word-finding difficulty, so the assessment was difficult to conduct. The assessing physician found that Mrs. Campbell was dependent on others for the activities of daily living and had little insight into her needs for assistance. He found that she suffered from "dementia syndrome". All three children were aware of his diagnosis.
The same physician did a second assessment in September, 2016, with Ivan, present. The physician found that Mrs. Campbell was declining further in cognition, and that she lacked insight into the decline. She was very challenging to interview, was obstreperous, difficult, refused to answer questions, and had a degree of paranoia.
The judge determined that the findings of the two assessments were known to all three children.
Later in the fall of 2016, the children, all of whom were concerned about their mother's financial management, decided that if one or more of the children could get their names onto Mrs. Campbell's bank accounts, it would provide some protection from financial exploitation of Mrs. Campbell. Unbeknownst to Karen, it later became evident that Ivan and Arnold's intention was to get their names on Mrs. Campbell's accounts to receive the account proceeds on Mrs. Campbell's death.
Further evidence of Mrs. Campbell's mental state was given by her lawyer, as to a visit by her to him in August of 2016. Mrs. Campbell alleged that Karen had physically forced her to sign land transfer documents in 2010, 2013 and 2014. This was patently completely untrue. The lawyer refuted by showing Mrs. Campbell the transfer documents that she and Mr. Campbell had signed before the lawyer having then had full mental capacity. The lawyer's evidence at trial was that he did not consider Mrs. Campbell to have mental capacity during the 2016 visit, a pronounced difference from her mental ability when she and Mr. Campbell made their wills, powers of attorney, and property transfer arrangements.
In September 2016, Karen discovered that her brothers had had their names added to Mrs. Campbell's bank accounts; she did not object, believing this was a protective measure rather than an intention to appropriate the funds in the accounts.
However hours before Mrs. Campbell's death on March 14, 2017, Ivan removed the funds from the accounts that were in his mother's and his names. Alarmed by this, Karen had the bank freeze the bank account with Arnold's and his mother's names on it.
The ensuing litigation related to the real estate transfers by Mr. and Mrs. Campbell and the bank account transfers to include Ivan and Arnold's names.
The real estate transfers predating Mr. Campbell's passing, were held to be effective to transfer title to the surviving joint tenants, as Mr. and Mrs. Campbell had clearly planned and properly documented.
As to the bank accounts in the names of Mrs. Campbell, Ivan, and Arnold, the judge determined that there was no evidence that Mrs. Campbell intended to make a gift of these accounts and so the accounts were held by Ivan and Arnold as trustees for her estate, and the funds returned to the estate. As well, the judge determined that if, on appeal, an appeal justice found evidence of an intention on Mrs. Campbell's part to gift the funds in the bank accounts, that Ivan and Arnold had exercised undue influence, i.e. the transfers into joint tenancy did not result from Mrs. Campbell exercising her own independent judgment and making her own decision.
The judge noted both brothers' full knowledge of their mother's cognitive decline and dementia diagnosis, predating the transfers of ownership of the bank accounts to include them both.
Arnold chose not to participate in the litigation or to give evidence. Ivan did participate in the litigation but the judge preferred the evidence of his sister on any point of difference. Neither Arnold nor Ivan chose to be represented by a lawyer in the litigation.
Lawyers who practice in wills and estates become cynical, because they see all the situations where families (and others) prey on vulnerable elders. I wish there were easier answers to these supremely difficult challenges.